200 F.3d 179 (3rd Cir.

1999)

JUAN ANGEL TORRES; ROSA MARIA DOMINGUEZ;

AND ROSA MARIA TORRES, A MINOR, BY HER
PARENTS AND NATURAL GUARDIANS JUAN ANGEL
TORRES AND ROSA MARIA DOMINGUEZ
v.
UNITED STATES OF AMERICA; DRUG ENFORCEMENT
ADMINISTRATION; MATTHEW DONAHUE; MARTIN
CAPLAN; MAUREEN KELLY; JOSEPH CAPONE; AND
JONATHAN COHEN
MATTHEW DONAHUE; MARTIN CAPLAN; MAUREEN
KELLY; JOSEPH CAPONE; AND JONATHAN COHEN,
APPELLANTS
No. 99-1024

UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT
Argued November 4, 1999
Decided December 29, 1999

On Appeal from the United States District Court for the Eastern District
of Pennsylvania, (D.C. Civ. No. 97-5804) District Judge: Honorable
Ronald L. Buckwalter[Copyrighted Material Omitted]
Attorneys for Appellants: David W. Ogden Acting Assistant Attorney
General Susan Shinkman Office of the United States Attorney Michael R.
Stiles United States Attorney Barbara L. Herwig Katherine S. Gruenheck
(argued) Appellate Staff United States Department of Justice Civil
Division, Appellate Staff 601 D Street, N.W. Washington, DC 205300001
Attorney for Appellees: Richard Edmund Patton (argued) 2729 River
Road New Hope, PA 18938
Before: Becker, Chief Judge, and Greenberg and Cudahy,* Circuit Judges

OPINION OF THE COURT

Greenberg, Circuit Judge.

I. INTRODUCTION
A. Factual Background
1

This matter comes on before this court on appeal from the district court's order
partially denying appellants' motion seeking summary judgment on qualified
immunity grounds. The appellants are Drug Enforcement Administration
("DEA") agents who applied for a search warrant for the appellees' residence
and executed the warrant the next day. The issues on appeal relate to the
execution of the warrant. The search was an aspect of an extensive DEA
investigation into a large cocaine distribution ring reputedly run by Geraldo
Nieves. During the investigation, the DEA secured the cooperation of Blake
O'Farrow, who had been a participant in the Nieves ring. O'Farrow informed
DEA Special Agent Matthew Donahue in September and November 1996, and
again in January 1997, that Nieves was using a house at 3936 North Fifth Street
in Philadelphia for storing, cutting, and bagging cocaine.

Based on the information obtained from O'Farrow, as well as other information

secured during the investigation of the Nieves ring, Donahue prepared a
probable cause affidavit and submitted it to a magistrate judge on January 30,
1997. That day, the magistrate judge signed a warrant authorizing a search of
"the property known as 3936 N. 5th Street, Philadelphia, PA" for "[c]ocaine,
packaging materials, dilutents [sic], plastic packaging slips, heat sealer, scales,
and a vice [sic]."

At approximately 6:00 a.m. on the next day, DEA Agents Martin Caplan,
Maureen Kelly, Joseph Capone, and Jonathan Cohen went to 3936 North Fifth
Street to execute the warrant.1 Donahue, however, did not go to the premises
with the other agents. The occupants of the house were asleep when the agents
arrived but appellee Rosa Maria Dominguez awoke to the sound of metal
rattling. She went back to sleep only to reawaken to the sound of knocking and
the agents' voices identifying themselves. Appellee Juan Angel Torres, who
was sleeping in the same room, awoke and looked out the window where he
saw people wearing DEA jackets. Dominguez (who put on a robe) and Torres
(who wrapped himself in a towel) then went downstairs and looked out a
ground floor window. Torres attempted to signal to the agents that Dominguez
would open the door, but they nevertheless broke through the door with a

battering ram.
4

The agents entered the home, pointed their guns at Torres and Dominguez, and
ordered them to lie on the floor. The agents placed Torres but not Dominguez
in handcuffs. The agents asked whether there were any weapons in the house,
and Torres told them the location of two firearms in his bedroom. After he had
been on the floor for about five minutes, Torres, still clad in his towel, was
helped to the living room couch. Dominguez then was permitted to attend to the
couple's two children upstairs. The agents did not point their guns at anyone
after the initial entry.

The agents searched the entire premises. In their deposition testimony, Torres
and Dominguez gave wide estimates for the duration of the search, varying
from one and one-half to three hours. During this time, Torres (who remained
handcuffed), Dominguez, and the children sat together on the couch. At some
point, the agents permitted Dominguez to make breakfast for the children, and,
in Torres's words, the children received nothing but "nice comments" from the
agents. Eventually, the agents removed the handcuffs and allowed Torres to get
dressed so that he could escort the agents to the building where he worked.2

The agents did not find drugs or drug paraphernalia in the home. They,
however, seized several items, including a Glock 9mm semiautomatic handgun,
a Ruger .357 magnum revolver, ammunition for those two weapons plus
ammunition for a third weapon which they did not locate, a roll of plastic tape,
and various papers, including earnings statements, phone cards, and a gas bill.
These items were returned to appellees within five days.
B. Procedural History

Appellees filed their complaint in the district court on September 16, 1997.
Ultimately, after amendments, the appellees asserted that they were entitled to
recover under the Federal Tort Claims Act and directly under the Constitution
for Fourth and Fifth Amendment violations with respect to the issuance and
execution of the warrant. See Bivens v. Six Unknown Agents of the Fed.
Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). Following discovery,
the agents moved for summary judgment, and the district court partially
granted their motion analyzing the appellees' claims under the Fourth
Amendment alone.

The district court held that appellees failed to allege a constitutional violation
with respect to the agents' conduct up to and including the initial entry into

appellees' home. In this regard, the court first determined that there was
probable cause for the issuance of the warrant. The court then found that the
agents had no reason to believe that they were executing the warrant at the
wrong location. In so ruling, the court declined to place any significance in the
fact that the warrant misdescribed the color of the front door of the home as the
court found that this mistake was "trivial" given that the warrant otherwise
described appellees' home accurately. The court then ruled that the agents acted
lawfully in using a battering ram to break down the front door.
9

The district court, however, refused to grant summary judgment to the agents
with respect to their conduct once they entered the home. Although the court
found that their treatment of Dominguez and the children was "reasonable, and
indeed, duly considerate under the circumstances," the court was "unable to
find that the agents' conduct... was reasonable and not excessive" with respect
to Torres's handcuffing for the duration of the search.

10

The court then concluded that the agents exceeded the scope of the warrant
when they searched the appellees' entire home rather than just the basement.
Although the warrant specifically authorized a search of "the property known as
3936 N. 5th Street, Philadelphia, PA," the court determined that the warrant
was "circumscribed" by the supporting probable cause affidavit, which stated
that cocaine was stored in the basement. The court then indicated, however,
that it was "possible" that exigent circumstances (specifically, the presence of
weapons and ammunition) justified a broader search of the entire home.

11

Overall the district court's memorandum opinion is ambiguous with respect to

its disposition of the agents' motion for summary judgment on the basis of
qualified immunity for their conduct in searching beyond the basement. The
court may have intended to grant the agents summary judgment based on its
finding of exigent circumstances, but its use of the word "possible" suggests
that the court found a factual issue for trial and hence denied summary
judgment. Indeed, even the agents are uncertain as to how the court ruled for
they explain in their reply brief that the "district court appears to have found
that the scope of the search was probably supported by exigent circumstances,
but reserved judgment." Reply br. at 4 n.2.3 Moreover, the agents in their
opening brief defended the validity of the search to the extent that it went
beyond the basement. Plainly, they would have had no reason to brief that issue
if they had been granted summary judgment on it. In the circumstances, we
conclude that the district court denied summary judgment with respect to
appellees' claims that the search unconstitutionally exceeded the scope of the
warrant.

12

The district court further ruled that the agents acted unlawfully by seizing items
not specifically listed in the warrant. The district court later reconsidered this
ruling, however, and in an order of January 5, 1999, granted summary judgment
in the agents' favor as to the seizure of items from appellees' home.

13

The court also addressed appellees' allegation that the agents "destroy[ed]
doors, ripp[ed] out ceilings and walls and overturn[ed] clothes and toys" during
the search. The court found no evidence in the record to support this allegation,
but refused to grant the agents summary judgment on the issue because their
motion papers did not specifically address the property damage claim. Finally,
the court held that appellees lacked standing to maintain any claims with
respect to warrantless searches of other properties (specifically, Torres's place
of employment and property belonging to Torres's father) which allegedly took
place on the day in question.

14

Agents Donahue, Caplan, Kelly, Capone, and Cohen, appeal to the extent that
the district court denied them summary judgment on the basis of qualified
immunity. In particular, the question they present is whether the district court
should have granted qualified immunity to them with respect to the following
aspects of their conduct in executing the search warrant: (1) leaving Torres
handcuffed for the duration of the search; (2) searching the entire premises
rather than just the basement; and (3) causing excessive damage to the walls,
ceilings, and other items in the home.4
II. JURISDICTION and STANDARD OF REVIEW

15

The district court had jurisdiction pursuant to 28 U.S.C. 1331 and 1346 and
we have jurisdiction to hear this appeal under 28 U.S.C. 1291 pursuant to the
collateral order doctrine, as applied to qualified immunity cases. See Mitchell v.
Forsyth, 472 U.S. 511, 105 S.Ct. 2806 (1985). We exercise plenary review over
the district court's denial of summary judgment on qualified immunity grounds.
See Abbott v. Latshaw, 164 F.3d 141, 145 (3d Cir. 1998), cert. denied, 119 S.
Ct. 2393 (1999).

16

Under the doctrine of qualified immunity, "[g]overnment officials performing

discretionary functions are`shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.' " Sharrar v. Felsing,
128 F.3d 810, 826 (3d Cir. 1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818, 102 S.Ct. 2727, 2738 (1982)); In re City of Philadelphia Litig., 49 F.3d
945, 961 (3d Cir. 1995). The inquiry when a defendant claims qualified

immunity is "whether a reasonable officer could have believed that his or her
conduct was lawful, in light of the clearly established law and the information
in the officer's possession." Sharrar, 128 F.3d at 826. Officers who "reasonably
but mistakenly" conclude that their conduct is lawful are thus entitled to
immunity. Id. A court, however, need not consider whether the right implicated
was clearly established at the time of the events in question if the plaintiff has
not alleged a deprivation of a constitutional right. See Wilson v. Layne, 119
S.Ct. 1692 (1999); County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5, 118
S.Ct. 1708, 1714 n.5 (1998); Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789
(1991); Larsen v. Senate of Pa., 154 F.3d 82, 86 (3d Cir. 1998), cert. denied,
119 S.Ct. 1037 (1999).
III. DISCUSSION
A. Handcuffing of Torres
17

The first question before us is whether the agents acted lawfully in their
treatment of Torres during the execution of the search. If they did, then they
were entitled to qualified immunity because the appellees would not have
"alleged a deprivation of a constitutional right at all." Lewis, 523 U.S. at 841
n.5, 118 S.Ct. at 1714 n.5.

18

The Supreme Court has held that officers executing a search warrant lawfully
may restrain persons present at the searched premises. See Michigan v.
Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 2595 (1981) ("[A] warrant to
search for contraband founded on probable cause implicitly carries with it the
limited authority to detain the occupants of the premises while a proper search
is conducted.") (footnotes omitted). In Summers, the Supreme Court noted that
a warrant to search for narcotics "may give rise to sudden violence or frantic
efforts to conceal or destroy evidence," and thus the risk of harm to officers and
occupants alike "is minimized if the officers routinely exercise unquestioned
command of the situation." Id. at 702-03, 101 S.Ct. at 2594. The Supreme
Court indicated that the officers might exceed their proper authority in an
"unusual case" involving "special circumstances, or possibly a prolonged
detention," but the "routine" detention of residents while a search is conducted
is constitutional. Id. at 705 n.21, 101 S.Ct. at 2595 n.21.

19

Further, case law has indicated that at least in certain circumstances officers
lawfully may handcuff the occupants of the premises while executing a search
warrant. In United States v. Fountain, 2 F.3d 656 (6th Cir. 1993), officers
executing a search warrant for narcotics and firearms handcuffed the occupants

of the house and forced them to lie face down on the floor while they
conducted the search. Id. at 659-60. The Court of Appeals for the Sixth Circuit
held that the detention was reasonable under the Fourth Amendment:
20

When occupants of a residence are detained during the execution of a search

warrant, the circumstances ordinarily will justify more intrusive behavior by
the police than in a typical on-the-street detention. When the ATF agents
entered Fountain's home pursuant to the warrant to search for narcotics, they
faced a confined, unfamiliar environment that was likely to be dangerous. [The
occupants] were handcuffed and forced to lie face down on the living room
floor while the search was conducted. Concern for safety of the agents and the
need to prevent disposal of any narcotics on the premises, justified the restraint
of the occupants, particularly under the circumstances of this case, where the
search was part of a narcotics investigation and weapons had been seized from
the home just one month earlier. The `character' of the intrusion on [the
occupants] and its `justification' were reasonable and proportional to law
enforcement's legitimate interests in preventing flight in the event incriminating
evidence is found and in minimizing the risk of harm to officers. Those
concerns plainly outweighed the intrusion experienced by [the occupants] in
being required to be on the living room floor while the search was completed....

21

Id. at 663; see also Van Brackle v. Parole Bd., No. Civ. A. 96-2276, 1996 WL
544229, at *2 (E.D. Pa. Sept. 26, 1996) (holding that the detention of an
occupant in handcuffs during a search was lawful) (citing Fountain).

22

On the other hand, handcuffing may be excessive in certain circumstances. In

Franklin v. Foxworth, 31 F.3d 873 (9th Cir. 1994), the court held that officers
executing a warrant violated the Fourth Amendment when they carried a
seriously disabled man from his bed and left him handcuffed on a couch for
over two hours with nothing to cover the lower half of his body. Id. at 874-78.
Though the man complained that his handcuffs hurt and that he was cold, the
officers waited an hour before adjusting the cuffs and giving him a blanket. Id.
at 882 (Brunetti, J., concurring). The Court of Appeals for the Ninth Circuit
labeled the officers' conduct "wanton[ ] and callous[ ]" and found that this was
an example of the "unusual case" envisioned by Summers. Id. at 876-78.
Accordingly, the court reversed a bench trial judgment in favor of the officers.
Id. at 874. Moreover, in a concurring opinion, one judge stated that the officers'
conduct was so egregious as to preclude any claims of qualified immunity on
remand. Id. at 878-80 (Reinhardt, J., concurring).

23

In Baker v. Monroe Township, 50 F.3d 1186 (3d Cir. 1995), we indicated that
officers acted excessively when they handcuffed a mother and her teenage

children who happened to be approaching a residence for a social visit when the
officers arrived to execute a search warrant. See id. at 1192-94. The plaintiffs
claimed that the officers left them handcuffed for 25 minutes and pointed guns
at them. Id. at 1189, 1192-93. Noting that the "use of guns and handcuffs must
be justified by the circumstances," id. at 1193, we reversed a summary
judgment in favor of an officer, holding that a Fourth Amendment violation
could be established if the plaintiffs' allegations regarding their treatment were
true. See id. at 1192-94 ("[T]he appearances were those of a family paying a
social visit...[T]here is simply no evidence of anything that should have caused
the officers to use the kind of force they are alleged to have used.").5
24

Viewing the facts in the light most favorable to appellees, we are of the view
that the agents' treatment of Torres was lawful.6 The agents left Torres on the
floor for only five minutes, and then helped him to the couch, where he still had
his towel to cover himself. Moreover, the agents permitted Dominguez and the
children to sit with Torres while the search was conducted. The agents directed
"nice comments" to the children, and they permitted Dominguez to prepare
breakfast for the children. The agents also permitted Dominguez to call her
supervisor to say that she would be missing work. The agents loosened Torres's
handcuffs after he twice indicated to them that they were too tight. The agents
did not point their guns after the initial moments following their entry into the
home, and Torres testified that the agents "didn't harm any of us." Further, the
duration of the search was not excessive under the circumstances, given the
size of the home (two stories plus a basement).

25

On these facts, the agents' conduct is far from analogous to the excessive
behavior of the officers in Franklin and Baker. As the Supreme Court indicated
in Summers, the execution of a narcotics search warrant "may give rise to
sudden violence or frantic efforts to conceal or destroy evidence," and thus
officers are entitled to "routinely exercise unquestioned command of the
situation." Summers, 452 U.S. at 702-03, 101 S.Ct. at 2594. The agents had
good reason to fear violence or destruction of evidence as they entered the
appellees' home because they had cause to believe that the premises was a key
location in a large-scale cocaine ring. Further, Torres informed the agents in the
initial moments of the search that there were two weapons in the home.
Moreover, the agents retrieved firearms, a Glock 9mm semiautomatic and a
Ruger .357 magnum, which might be associated with a violent drug operation.
The officers also found ammunition for a third type of firearm that they did not
locate during their search but which they feared might be present.

26

The circumstances confronting the agents were such that they had reason to be
concerned for their safety. Accordingly, we conclude that the agents acted

lawfully in their treatment of Torres. Therefore, they are entitled to qualified

immunity with respect to claims regarding that treatment.
B. Extent of the Search
27

The second question before us is whether the agents acted lawfully in searching
beyond the basement of the home. If they did, then they were entitled to
qualified immunity on this claim as well because the appellees would not have
"alleged a deprivation of a constitutional right at all." Lewis, 523 U.S. at 841
n.5, 118 S.Ct. at 1714 n.5.

28

The warrant authorized a search of "the property known as 3936 N. 5th Street,
Philadelphia, PA." Although the probable cause affidavit stated that Nieves
stored cocaine in five-gallon cans in the basement of the premises, the affidavit
recited other items the location of which were not expressly limited to any
particular portion of the building. The affidavit stated that "[w]hile inside the
premises with NIEVES in January, 1996" the confidential informant saw
"diluents [sic], a scale, a heat sealer for the packages of cocaine, and a vise
which NIEVES used to crush the hardpacked cocaine." Furthermore, according
to the affidavit, Nieves repeatedly told the confidential informant that he was
continuing to use 3936 North Fifth Street to store and package cocaine, and the
informant saw Nieves's truck parked outside the building on January 3, 1997,
just a few weeks before the search warrant was executed.

29

The Supreme Court has stated that "[a] lawful search of fixed premises
generally extends to the entire area in which the object of the search may be
found." United States v. Ross, 456 U.S. 798, 820, 102 S.Ct. 2157, 2170 (1982).
In this regard, we point out that courts specifically have held that a warrant
encompasses the authority to search the entire building if the person who is the
target of the search has access to or control over the entire premises. See, e.g.,
United States v. Butler, 71 F.3d 243, 249 (7th Cir. 1995) (where a building is
being used as a single unit, "a finding of probable cause as to a portion of the
premises is sufficient to support a search of the entire structure"; a search of the
entire premises is permitted where the target of the investigation "exercised
`dominion and control' over the entire building or had access to the entire
structure") (citation omitted); United States v. Whitten, 706 F.2d 1000, 1008
(9th Cir. 1983) ("[A] warrant may authorize a search of an entire street address
while reciting probable cause as to only a portion of the premises if they are
occupied in common rather than individually, if a multiunit building is used as
a single entity, if the [alleged wrongdoer] was in control of the whole premises,
or if the entire premises are suspect."); see also 2 Wayne R. LaFave, Search and
Seizure 4.5, at 41 (3d ed. Supp. 1999) ("The obvious point is that when a

resident apparently has the run of the premises, there is no reason to conclude
that the warrant must be limited to the precise spot where the items sought
happened to be when observed on a prior occasion."); cf. Jackson v. Byrd, 105
F.3d 145 (3d Cir.) (habeas corpus petition denied in controlled substance
constructive possession case where lessee-petitioner had access and control
over all areas of an apartment even though the substance was found in a
bedroom occupied by petitioner's brother), cert. denied, 520 U.S. 1268, 117
S.Ct. 2442 (1997).
30

The building at 3936 North Fifth Street was not a multi-unit premises with
separate areas controlled by separate residents. Rather, it was a traditional twostoryhome with bedrooms upstairs, a dining room and kitchen downstairs, and a
basement accessible through the dining room. Accordingly, the warrant
authorized the search of the entire building and the appellees did not allege a
violation of a constitutional right at all on the scope of the search claim.
Therefore, the agents are entitled to qualified immunity on that claim.

31

In reaching our result, we recognize that the appellees' amended complaint with
respect to the scope of the search is very general, as it merely alleges that the
agents "conducted an excessive and unreasonable search." Nevertheless, we are
of the view that a plaintiff by a generalized pleading should not be deemed to
have alleged a deprivation of a constitutional right so as to defeat a claim of
immunity when an inquiry into the undisputed facts demonstrates that there is
no basis for the claim. After all, the Supreme Court in Anderson v. Creighton,
483 U.S. 635, 639-40, 107 S.Ct. 3034, 3038-39 (1987), made it clear that when
an officer claims immunity on the ground that he or she did not violate a clearly
established constitutional or statutory right of which a reasonable person would
have known the plaintiff's claim must be considered in a specific context rather
than in an abstract generalized sense. We think that the same standard must be
applied in determining whether a plaintiff has alleged a violation of a
constitutional right in the first place.
C. Damage to the Home

32

The district court found that there was no evidence to support appellees'
allegation that the agents caused excessive damage to doors, ceilings, walls,
and other property inside the home, but nevertheless declined to grant summary
judgment because the agents' motion papers did not specifically address the
property damage claim. We are constrained to dismiss the appeal insofar as it
relates to this claim because we are without power to inquire into the
sufficiency of a plaintiff's evidence on an appeal from a denial of qualified
immunity. See Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 2156

(1995). Despite the district court's view, we find that on the record before us
there are questions of fact relating to the allegation that the agents caused
excessive damage once inside the premises. While we do not foreclose the
agents from making another motion for summary judgment on the point, see
Behrens v. Pelletier, 516 U.S. 299, 306-11, 116 S.Ct. 834, 838-41 (1996), as the
record now stands, the appellees' claim with respect to excessive damage must
be resolved at trial. We do point out, however, that because it could be
anticipated that contraband would be secreted, a reasonable officer would
believe that at least in some circumstances he or she would not violate clearly
established constitutional or statutory rights of which a reasonable person
would have known in damaging a premises in executing a search warrant.
D. Agent Donahue
33

While the district court believed that Donahue was present when the warrant
was executed, the parties agree that he was not there. Accordingly, Donahue is
entitled to qualified immunity as to all of appellees' claims arising from the
execution of the warrant. Of course, this conclusion takes him out of the case,
as the district court found that the appellees failed to allege a constitutional
violation up to and including the agents' initial entry into the appellees' home.
IV. CONCLUSION

34

Donahue is entitled to qualified immunity with respect to each of the claims at

issue on this appeal. The other agents are entitled to qualified immunity with
respect to the handcuffing of Torres and their conduct in searching beyond the
basement of the home, but their appeal will be dismissed with respect to
appellees' claim that they did excessive damage during the search. Accordingly,
we will remand the matter to the district court to enter summary judgment on
all issues in favor of Donohue and to enter summary judgment in favor of the
other agents to the extent that they are entitled to qualified immunity. The
parties will bear their own costs on this appeal.

NOTES:
*

Honorable Richard D. Cudahy, Senior Judge of the United States Court of

Appeals for the Seventh Circuit, sitting by designation.

The factual record relating to the execution of the warrant derives largely from
the appellees' depositions as the appellees did not depose the agents.

According to appellees' amended complaint, after the agents completed the

search of appellees' home, they conducted a warrantless search of property
owned by "plaintiff's father."

Actually, the agents hedge on the point as they also contend that the district
court "granted qualified immunity and ruled in favor of the defendants on all
but two of [appellees' constitutional] claims: the duration of the restraint of
Torres, and excessive damage to the residence." Reply br. at 2. It appears that
the agents quite naturally would like to read the district court's opinion as
granting them qualified immunity on the scope of the search issue but are
unwilling to forego briefing the issue.

The appellees have challenged the district court's decision to the extent that it
granted the agents summary judgment but those issues are not before us on this
appeal. The district court partially granted and partially denied the
government's motion for summary judgment on the Tort Claims Act issues but
those dispositions as well are not before us.

Baker did not present a qualified immunity issue. Rather, the district court had
granted summary judgment in favor of an officer on the ground that there was
insufficient evidence to establish that he had participated in or had knowledge
of the treatment the plaintiffs suffered. Baker, 50 F.3d at 1189. We reversed,
holding that the plaintiffs' testimony, if true, would support a Fourth
Amendment claim against the officer. See id. at 1192-94.

We note that determining whether officers have used excessive force is a factspecific inquiry, taking into account such factors as the severity of the crime,
any threat to officer safety, any active resistance, and any injury resulting to the
person restrained. See Mellott v. Heemer, 161 F.3d 117, 122 (3d Cir. 1998),
cert. denied, 119 S.Ct. 2051 (1999).